Raman v Infosys Limited[2021] QIRC 275

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Mr Deepesh Vadakkedath Raman, the Applicant, applies for a proportionate payment of long service leave with respect to his former employment with Infosys Limited ("Infosys").

2. [2]
   Mr Raman commenced his employment with Infosys in around December 2011 and resigned from the employment effective on or about 18 November 2019.  The total continuous period of the Applicant's employment with Infosys was 7 years, 34 weeks and four days.

3. [3]
   Infosys is part of a group of companies, Infosys Group, which together form a global digital service and global technology consulting business with a presence in 46 countries around the world.  Infosys is a company incorporated in India and is listed on the New York stock exchange.  Infosys operates in Australia as a foreign entity registered with the Australian Securities and Investment Commission.^[1]

4. [4]
   During his employment with Infosys, Mr Raman was primarily based in India and was assigned to various projects in Bangalore, London, Edinburg, Bristol and finally, Brisbane.  In March 2020, Mr Raman was assigned a role in a project with the Bank of Queensland in Brisbane.

5. [5]
   Relevant to Mr Raman's application, s 95(3) and s 95(4)(b)(ii) of the Industrial Relations Act 2016 ("IR Act") provide that an employee who has completed at least seven years continuous service is entitled to a proportionate payment for long service leave where the employee terminates the service because of a domestic or other pressing necessity.

6. [6]
   Mr Raman contends that he is entitled to a proportionate payment of long service leave as he terminated his services with Infosys because of a domestic or other pressing necessity on the following basis:

1. (a)
   Mr Raman was initially asked to travel to Brisbane alone without his family to take up the appointment on the project with the Bank of Queensland;

2. (b)
   Mr Raman booked tickets for his family to travel to Brisbane on the basis that Infosys had approved for his family to join him in Brisbane;

3. (c)
   on 11 October 2019, Mr Raman signed a lease agreement to move into a new rental property;

4. (d)
   on 18 October 2019, the project that Mr Raman was working on in Brisbane was abruptly shut down;

5. (e)
   Mr Raman resigned from his employment with Infosys in order to take up an alternative role in Sydney on the basis that the Brisbane project had ended; and

6. (f)
   the outlays associated with the ending of the Brisbane project included all airline tickets Mr Raman had booked for his family equalling $3500, the bond amount paid for the house in Brisbane equalling about $1680, overall lease breakage charges of approximately $6000 (inclusive of the bond and new tenant), paying the bond amount for a new house in Sydney equalling approximately $3600 along with other expenses to which Mr Raman calculated at a total of $12,000.

7. [7]
   Infosys contends that the application should be dismissed on the following basis:

1. (a)
   there is no relevant Queensland service;

2. (b)
   the evidence does not demonstrate that Mr Raman is likely to incur any costs or any substantial costs in connection with the relocation;

3. (c)
   the evidence suggests that the resignation was not the product of a pressing necessity but a desire to take up a higher paying job; and

4. (d)
   that even if some costs were incurred and that the higher paying job was not the prime motivating factor for the resignation, those factors would not constitute a pressing necessity when the very nature of the employment with Infosys was of temporary assignments and relocation.

8. [8]
   For the reasons outlined below, I have determined that Mr Raman did not have an entitlement to proportionate payment of long service leave.

Did Mr Raman have an entitlement to proportionate payment of long service leave under the IR Act?

9. [9]
   Chapter 2, Part 3, Division 9 of the IR Act provides for an entitlement to long service leave in the following terms:

95 Entitlement - employees other than seasonal employees

3. (1)
   This section applies to an employee, other than a seasonal employee.

Note -

For provisions applicable to seasonal employees, see subdivisions 7 and 8.

3. (2)
   The employee is entitled to long service leave, on full pay, of -

1. (a)
   if the employee has completed 10 years continuous service - 8.6667 weeks; and

2. (b)
   after 10 years' service, if the employee has completed at least a further 5 years continuous service - a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.

3. (3)
   An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.

3. (4)
   However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if -

1. (a)
   the employee's service is terminated because of the employee's death; or
2. (b)
   the employee terminates the service because of -

   1. the employee's illness; or
   2. a domestic or other pressing necessity; or

…

10. [10]
    As noted above, Mr Raman contends that he is entitled to a proportionate payment of his long service leave on the basis that, pursuant to s 95(4)(b)(ii) of the IR Act, he terminated the employment because of a domestic or other pressing necessity.  Whilst Mr Raman had been employed by Infosys since about December 2011, he had only worked in Queensland (and Australia) since 23 March 2019.   The question then arises as to whether Mr Raman has the necessary service for the purpose of the IR Act.

11. [11]
    Section 93 of the IR Act provides a definition of continuous service in the following terms:

continuous service, of an employee, means -

1. (a)
   in section 107 - the period of continuous service the employee is taken to have had with an employer under section 107(2)(b); or
2. (b)
   elsewhere - the employee's continuous service with the same employer, whether wholly in the State or partly in and partly outside the State.

12. [12]
    It has been held^[2] that, despite an employee's service in other states, at the time of the termination of the worker's employment, the employee's service had to have a substantial connection with Queensland for all of the employee's service to be continuous service for the purpose of accruing long service leave.

13. [13]
    Having regard to Mr Raman's employment relationship, and the relevant circumstances overall, I have determined that at the time of his resignation, Mr Raman's service did not have a substantial connection with Queensland.

14. [14]
    Relevantly, the evidence I have had regard to in forming this conclusion includes:

1. (a)
   Infosys employs a workforce that it deploys to various international locations to perform work and it describes those employees as "deputies";

2. (b)
   the deputies are engaged on contracts of employment in India and prior to their deputation, they sign a letter setting out the terms and conditions of the relevant deputation; and

3. (c)
   Mr Raman's deputation letter, signed by him prior to his deputation to Brisbane, in summary, stated that:

1. (i)
   Mr Raman was initially engaged for a period of four months commencing on 25 March 2019, but the exact duration would depend upon the specific requirements of the project;

2. (ii)
   the deputation was temporary, and that Mr Raman's base location continued to be in India, and he would return to his home country upon completion of the deputation; and

3. (iii)
   that the deputation could be terminated on two weeks' notice after which the deputation letter would cease to operate, and Mr Raman's employment contract would take full effect.

15. [15]
    At the time of his resignation in November 2019, Mr Raman had only been working in Brisbane since March 2019 - approximately eight (8) months.  Mr Raman's work in Queensland was temporary in nature and had a limited connection to Queensland.

16. [16]
    Given these matters, including the length of service in Queensland and the intended temporary nature of the deputation to Queensland, I have concluded that at the time Mr Raman resigned from Infosys, his employment service did not have a substantial connection with Queensland.   Accordingly, I have concluded that Mr Raman did not have seven years continuous service with Infosys within the meaning of s 95(3) of the IR Act and, consequently, he is not entitled to a proportionate payment of long service leave.

17. [17]
    For this reason, I consider that Mr Raman's application should be dismissed.  However, if I am wrong, I will also address the parties' extensive submissions with respect to whether Mr Raman resigned because of a domestic or other pressing necessity.

Did Mr Raman terminate his employment with Infosys because of a domestic or other pressing need?

18. [18]
    It has been held^[3] that, having regard to s 95 of the IR Act as a whole, the purpose or policy objective of s 95(4)(b) of the IR Act is to ensure that an employee is not deprived of a proportionate payment of long service leave, where the employee terminates his or her service because of the employee's illness or incapacity or because of a domestic or other pressing necessity.   Further, it has been held^[4] that, having regard to the context of the phrase "other pressing necessity" contained in s 95(4)(b) of the IR Act, the matter or issue, like that of a "domestic necessity" must be of such pressing character that it necessitates the resignation of the employee.

19. [19]
    Mr Raman contends that he was forced to resign from his position with Infosys because the cost of relocating would have been too great for him to bear. 

20. [20]
    Further, Mr Raman contends that following being advised that the project was to cease, and after having been separated from his young family for six months, he was faced with a situation where he would have to cancel all airline tickets that he had booked and go and establish himself in a new city.  He was concerned that he would potentially have to stay away from his family for a longer period of time and that he would not be able to take a house on lease or arrange for his family to come to Australia until at least six months later.

21. [21]
    Mr Raman contends that there was no bigger domestic pressing situation than being forced to stay away from his family for the foreseeable future, and on that basis, he resigned from Infosys.  Mr Raman's evidence was that the primary factor for the tendering of his resignation was to avoid a financial crisis by breaking the lease agreement.

22. [22]
    Infosys contends that Mr Raman's affidavit and his evidence in chief did not explain the calculation of the $12,000 loss, nor does he explain how relocating to Sydney was connected to his separation from his family.  Infosys further submits that the following factual matters may be noted:

1. (a)
   Mr Raman's lease was for a total of six months;

2. (b)
   Mr Raman was entitled to be reimbursed up to three months rent (in this case $5460) by Infosys but that he never made any claim for reimbursement with Infosys;

3. (c)
   it is doubted that Mr Raman's lease breakage fee would be three months' rent or anything like it;

4. (d)
   Mr Raman's family could have been relocated to Australia by Infosys at its expense at any time from May 2019 onwards, however,  Mr Raman did not take the necessary steps to enable that to occur; and

5. (e)
   relocation from Brisbane to Sydney has no apparent bearing on Mr Raman's separation from his family who were apparently in India throughout the relevant period.

23. [23]
    I accept the force of Infosys' submissions, to the extent that,  Mr Raman adduced limited evidence to support his contention that he was liable to and did incur $12,000 worth of expenses.

24. [24]
    Whilst Mr Raman did, for instance, rely on the rental agreement and annexed it to his affidavit, there is no evidence that he incurred any expenses or penalties associated with his evidence that he would need to break the lease.  Further, whilst Mr Raman includes copies of tickets for his family to come to Australia, it appears that those tickets were issued on 9 November 2020, a point in time after Mr Raman had been advised that the project in Queensland was to end.

25. [25]
    Further, the terms of the deputation included that Infosys would cover components for rental assistance and bond breakage and family travel expenses.  There is no evidence that Mr Raman made a claim for such expenses with Infosys.

26. [26]
    Additionally, Infosys contends that even if Mr Raman's claims were factually correct, there is no demonstrated domestic or other pressing need for Mr Raman to tender his resignation.

27. [27]
    In this regard, Infosys cross-examined Mr Raman, and his evidence was that:

1. (a)
   Mr Raman's salary whilst working for Infosys in Australia in 2019 was $90,000 per year;

2. (b)
   on 15 October 2019, Mr Raman received an email from a company named ASG inviting him to express interest in a job with ASG in Sydney;

3. (c)
   on 21 October 2019, Mr Raman had a telephone conversation with an employee of ASG and on 22 October 2019, was provided with a contract of employment with ASG;

4. (d)
   the position at ASG had a salary of $130,000 which was a 45% increase on the salary Mr Raman was earning at Infosys;

5. (e)
   after receiving a copy of the contract of employment from ASG, Mr Raman resigned from his employment with Infosys and then immediately signed the contract of employment with ASG; and

6. (f)
   Mr Raman commenced working with ASG on 25 November 2019.

28. [28]
    The phrase "domestic and other pressing necessity" has been considered in decisions of this Commission.  Relevantly, in Saxby v Southern Downs Security Pty Ltd^[5] Commissioner Fisher held:

For Mr Swift to be successful he needs to establish that he resigned his employment because of, that is, for the reason of, pressing necessity.  Various decisions of this Commission have considered the meaning of "pressing necessity" by reference to the definitions of the words "pressing" and "necessity" found in the Macquarie Dictionary: Vermeer v Montague Fresh Pty Ltd; Hawkins v Torres Strait Island Regional Council; and Mihill v Harcourt Engineers Pty Ltd t/as Harcourt Consulting Engineers.  In each of those decisions the definition of "pressing" was given as "urgent: demanding immediate attention" and "necessity" as "something necessary or indispensable". Adopting those definitions the question to be answered then is whether Mr Swift resigned his employment for an urgent reason, one that demanded his immediate attention and was necessary.^[6] (Citations omitted).

29. [29]
    As submitted by Infosys, in this matter, there is no external factor which has forced Mr Raman to resign that is beyond what would be expected to occur at the end of a temporary international secondment.

30. [30]
    Mr Raman, in accepting the deputation, voluntarily accepted a temporary posting to Brisbane.  The terms of the deputation were that, in addition to it being temporary, the duration was unpredictable and based upon business and client requirements and that Mr Raman would return to India at the end of the deputation.

31. [31]
    The matters relied on by Mr Raman as being matters that forced his resignation are matters which would have arisen , in any event, at the end of the posting to Brisbane.  These matters were known to Mr Raman as he had undertaken several other postings to various international locations, albeit never previously to Australia.

32. [32]
    I do not consider that Mr Raman was forced to resign due to a domestic or other pressing necessity, namely a financial crisis, if he had to leave Brisbane.  As noted above, it was inevitable, in the circumstances of the deputation, that Mr Raman would have to relocate first to Brisbane and then either back to India or to another location upon agreement with Infosys.  Mr Raman resigned from his employment before Infosys could identify an alternative relocation position for him.

33. [33]
    On the evidence, Mr Raman resigned for reasons including, that he desired to remain in Australia and to earn a greater salary with ASG.  It was Mr Raman's choice to look for alternative employment within Australia and to ultimately resign from Infosys, rather than return to India or to commence a new deputation in accordance with the terms of his contract of employment with Infosys.

34. [34]
    Mr Raman's decision to resign from Infosys was not because of a domestic or other pressing necessity within the meaning of s 95(4)(b)(ii) of the IR Act.

Conclusion

35. [35]
    For the foregoing reasons I have concluded that:

1. (a)
   as at the date of his resignation, Mr Raman did not have at least seven years continuous service with Infosys within the meaning of s 95(3) of the IR Act; and

2. (b)
   Mr Raman did not terminate his service with Infosys because of a domestic or other pressing necessity within the meaning s 95(4)(b)(ii) of the IR Act.

Orders

36. [36]
    I make the following orders:

1. The application is dismissed.